Williamson, Rosalind v. Professional Care Services , 2018 TN WC App. 40 ( 2018 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Rosalind Williamson ) Docket No. 2017-08-0203
)
v. ) State File No. 78680-2016
)
Professional Care Services, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Deana C. Seymour, Judge )
Affirmed and Certified as Final – Filed August 13, 2018
The employee alleges that she fell while walking up a ramp to her employer’s building
and suffered injuries to her shoulder and hand. Following an expedited hearing, the trial
court denied benefits, and the employee’s appeal of that denial was dismissed as
untimely. The employer subsequently filed a motion for summary judgment, which the
trial court granted and the case was dismissed. The employee has appealed. We affirm
the trial court’s decision and certify its order as final.
Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
which Judge David F. Hensley and Judge Timothy W. Conner joined.
Rosalind Williamson, Somerville, Tennessee, employee-appellant, pro se
Nicholas J. Peterson and T. Ryan Malone, Knoxville, Tennessee, for the employer-
appellee, Professional Care Services
Memorandum Opinion 1
Rosalind Williamson (“Employee”) alleges that on September 30, 2016, while
working for Professional Care Services (“Employer”), she slipped on a ramp outside
Employer’s building and fell. She claims that she suffered injuries to her left shoulder
and hand in the fall.
1
“The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Appeals Bd. Prac. & Proc. § 1.3.
1
Employer provided a panel of physicians from which Employee selected Dr. Bret
Sokoloff. Dr. Sokoloff ordered an MRI of Employee’s shoulder and, after reviewing the
results, concluded that her shoulder condition was “likely chronic” and that her hand
complaints were “nonspecific.” Employer denied further treatment, and Employee
obtained additional medical care on her own, including surgery on her shoulder
performed by Dr. Sokoloff outside the context of her workers’ compensation claim.
Employee filed a petition seeking medical and temporary disability benefits.
Following an expedited hearing, the trial court ruled there was insufficient medical proof
to find that Employee would likely prevail at trial in establishing her medical complaints
arose primarily out of her employment. Employee filed an untimely appeal of the trial
court’s expedited hearing order, which we dismissed.
Employer subsequently filed a motion for summary judgment, arguing that
Employee had no medical proof of causation. Employer maintained that Dr. Sokoloff
provided the only expert medical opinion, and he concluded merely that her shoulder
condition was chronic and her hand condition was nonspecific.
The trial court granted Employer’s motion and dismissed the case. In doing so,
the court noted that Employee provided no causation opinion to support her claim and
that she failed to respond to the motion for summary judgment consistent with the
requirements set out in Rule 56 of the Tennessee Rules of Civil Procedure. Employee
has again appealed. 2
I.
The granting or denial of a motion for summary judgment is an issue of law and,
therefore, our standard of review is de novo with no presumption of correctness. Rye v.
Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); McBee v.
CSX Transp., Inc., No. W2015-01253-COA-R3-CV, 2017 Tenn. App. LEXIS 129, *14
(Tenn. Ct. App. Feb. 24, 2017). As such, we must “make a fresh determination of
whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have
been satisfied.” Rye, 477 S.W.3d at 250. In addition, we “must view the evidence in the
light most favorable to the non-moving party and must also draw all reasonable
inferences in favor of the non-moving party.” Dugger v. Home Health Care of Middle
Tenn., No. M2016-01284-SC-R3-WC, 2017 Tenn. LEXIS 206, at *8 (Tenn. Workers’
Comp. Panel Jan. 31, 2017).
2
Employer also appealed, asserting that the regulation relied upon by the trial court to assess the filing fee
against it, Tenn. Comp. R. & Regs. 0800-02-21-.07 (2016), was unconstitutional because it requires
employers to pay the fee even if the employer is the prevailing party. However, in its brief filed on
appeal, Employer indicated it did not wish to pursue the issue. Accordingly, it is unnecessary for us to
address the constitutionality of the regulation.
2
Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. When a party who does not bear
the burden of proof at trial files a motion for summary judgment, it must do one of two
things to prevail: (1) submit affirmative evidence that negates an essential element of the
nonmoving party’s claim, or (2) demonstrate that the nonmoving party’s evidence is
insufficient to establish an essential element of the nonmoving party’s claim. Tenn. Code
Ann. § 20-16-101 (2017); see also Rye, 477 S.W.3d at 264. If the moving party is
successful in meeting this burden, the nonmoving party “may not rest upon the mere
allegations or denials of its pleading.” Rye, 477 S.W.3d at 265. Rather, the nonmoving
party must respond by producing affidavits, pleadings, depositions, responses to
interrogatories, or admissions that set forth specific facts showing that there is a genuine
issue for trial. Tenn. R. Civ. P. 56.06; see also Rye, 477 S.W.3d at 265. If the
nonmoving party fails to respond in this manner, “summary judgment, if appropriate,
shall be entered against the [nonmoving] party.” Tenn. R. Civ. P. 56.06.
In addition to these requirements, Rule 56.03 provides specific filing requirements
for both the moving party and the nonmoving party. The moving party must file a
statement of undisputed material facts with its motion, ensuring that each fact is
accompanied by a citation to the record. Tenn. R. Civ. P. 56.03. Likewise, the
nonmoving party is instructed to respond to this statement of undisputed facts, either
indicating it agrees the fact is undisputed or demonstrating that the fact is disputed by
providing a citation to the record. Id. “The requirements of Rule 56 are not mere
suggestions. The use of the words ‘must’ and ‘shall’ in Rule 56.03 to describe the
necessary elements of a motion for summary judgment and any response thereto are plain
and unambiguous.” Thomas v. Zipp Express, No. 2015-06-0546, 2017 TN Wrk. Comp.
App. Bd. LEXIS 22, at *11 n.4 (Tenn. Workers’ Comp. App. Bd. Mar. 15, 2017).
As noted above, the trial court granted Employer’s motion for summary judgment
because Employee provided no causation opinion to support her claim. She also failed to
respond to the motion consistent with the requirements of Rule 56. On appeal, Employee
has not filed a brief as required by Tenn. Comp. R. & Regs. 0800-02-22-.03(3) (2018)
and has not otherwise offered any argument as to how the trial court erred in granting
Employer’s motion.
Employee does contend that counsel for Employer violated her privacy by
obtaining her medical records, that efforts to obtain her medical records were used to
“intimidate” her, that defense counsel “removed” medical records that would have
benefited her claim, that “none of [her] proof was considered,” and that “[t]his appeal
includes things that were not considered in the decision” of the trial court. Unfortunately,
however, Employee does not address the legal basis for the trial court’s decision granting
summary judgment, which is the issue dispositive of this appeal. We decline to speculate
3
about what arguments Employee might make, and it is not our role “to research or
construct a litigant’s case or arguments for him or her.” Sneed v. Bd. of Prof’l
Responsibility of the Sup. Ct. of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010).
We also note it is well-established that we will not consider documents or
information on appeal that was not presented to and considered by the trial court. See
Hadzic v. Averitt Express, No. 2014-02-0064, 2015 TN Wrk. Comp. App. Bd. LEXIS 14,
at *13 n.4 (Tenn. Workers’ Comp. App. Bd. May 18, 2015). Thus, we have not
considered the materials submitted by Employee with her notice of appeal that are not
properly part of the record. We have likewise disregarded documents attached to
Employer’s brief that are not part of the record.
II.
Employer has asked that this appeal be deemed frivolous and that it be awarded
attorney’s fees.
A frivolous appeal is one that is devoid of merit or brought solely for delay.
Yarbrough v. Protective Servs. Co., Inc., No. 2015-08-0574, 2016 TN Wrk. Comp. App.
Bd. LEXIS 3, at *11 (Tenn. Workers’ Comp. App. Bd. Jan. 25, 2016). Stated another
way, “[a] frivolous appeal is one that . . . had no reasonable chance of succeeding.”
Adkins v. Studsvik, Inc., No. E2014-00444-SC-R3-WC, 2015 Tenn. LEXIS 588, at *30
(Tenn. Workers’ Comp. Panel July 21, 2015). Although we conclude that this appeal had
no realistic chance of success and is frivolous, we exercise our discretion not to assess
attorneys’ fees or costs against Employee. See Tenn. Comp. R. & Regs. 0800-02-22-
.04(6) (2018).
We affirm the trial court’s grant of Employer’s motion for summary judgment and
certify the court’s order as final.
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TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Rosalind Williamson ) Docket No. 2017-08-0203
)
v. ) State File No. 78680-2016
)
Professional Care Services, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Deana C. Seymour, Judge )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 13th day of August, 2018.
Name Certified First Class Via Fax Via Sent to:
Mail Mail Fax Number Email
Rosalind Williamson X Forgive12001@yahoo.com
Nicholas Peterson X nicholas.peterson@petersonwhite.com
Ryan Malone X ryan@petersonwhite.com
Deana C. Seymour, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X Penny.Patterson-Shrum@tn.gov
Workers’ Compensation Claims
Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov